CRIMINAL LAW AND PROCEDURE – OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH – Whether an accused person can be convicted for the offence of culpable homicide punishable with death where the prosecution failed to establish intention to cause the death of the deceased


“In order to secure a conviction for culpable homicide punishable with death, the prosecution must prove the mens rea of the offence i.e that the act of the accused, which resulted in the death of the deceased, was intentional. The eye witnesses to the offence were the appellant and the passenger in the vehicle driven by the deceased. Unfortunately, the prosecution did not deem it necessary to call him to testify. In the circumstances of this case, he was a material witness whose testimony would have been of immense assistance to the Court. The Court was left with the evidence of the appellant alone as to what transpired at the moment the deceased lost his life. It is noteworthy that the prosecution relied in part on the appellant’s extra-judicial statement, Exhibit 3, wherein he stated that while chasing the deceased with the bullion van, he fired shots into the air to scare him and to make him stop the car. He refused to stop. The chase led them into a close where he eventually stopped. He stated that he came down from the van to effect his arrest. In the process of the struggle to arrest him and take him to the nearest police station, his pistol, which was still corked, accidentally went off and a bullet hit the deceased on his head and caused his death. ?He clearly raised the defence of accidental discharge. The statement, once admitted in evidence, forms part of the prosecution’s case. See: Ikpa Vs the State (2017) LPELR-42590 (SC): Egboghonome vs The State (1993) 7 NWLR (Pt. 306) 383. He repeated the same defence at the trial. Interestingly, PW1, testified under cross-examination, that in his opinion, the appellant’s intention was to arrest the deceased and not to kill him. This testimony, coming from a prosecution witness, supports the defence of accident. Having regard to the scenario that unfolded, I am of the considered view that there was some doubt as to whether there was an intent to kill. The appellant testified that as a Police man on escort duty in a bullion van, the protocol was to keep his weapon cocked and ready due to the frequency of armed robbery attacks on bullion vans. It was in that state that he chased after the deceased, shot in the air and eventually came down from the vehicle to effect the arrest, when the unfortunate incident occurred. ?In the absence of the testimony of the deceased’s passenger, who would have been able to state exactly what transpired, the appellant was entitled to the benefit of the doubt. Indeed, the prosecution realized this when it urged the trial Court, in the course of its final address (see pages 116-117 of the record), to convict the appellant of the lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC in OGBOKA v. STATE (2021-LCER-40490-SC) (Pp 33 – 36 Paras F – A)

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